complishing the fraud; but, according to all of them, there must be, at least, a direct and positive false assertion as to some existing matter by which the victim is induced to part with his money or property. Ranney v. People, 22 N. Y. 413.

§ 438. Something of Value must be Obtained. To constitute the offense, something of value must be obtained by means of a false pretense with the intent to defraud. To obtain goods with the intent to defraud is not enough. It must be accomplished by a false pretense. "By the terms of the statute the pretense must be false. And the doctrine undoubtedly is, that if it is not false, though believed to be so by the person employing it, it is insufficient." 2 Bishop, Crim. L. § 417; State v. Asher, 50 Ark. 427.

§ 439. Similar Frauds may be also Shown.-Where goods have been obtained by means of fraudulent representations, it has been held that as the intent is a fact to be arrived at, it is competent to show that the party accused was engaged in other similar frauds about the same time, provided that the transactions are so connected as to time, and so similar in other relations, that the same motive may reasonably be imputed to them all. Judge Daniels in Weyman v. People, 4 Hun, 511. The question whether representations mislead is one of fact rather than law. People v. Long, 44 Mich. 299; Thomas v. People, 34 N. Y. 351. As to right to show other similar representations of respondent, see People v. Hennsler, 48 Mich. 49; Hall v. Naylor, 18 N. Y. 588, 75 Am. Dec. 269; Miller v. Barber, 66 N. Y. 558; Mayer v. People, 80 N. Y. 364; Cary v. Hotailing, 1 Hill, 311, 37 Am. Dec. 323.

In Com. v. Eastman, 1 Cush. 189, 48 Am. Dec. 596, the defendants were indicted for obtaining goods of certain persons by false pretenses. Evidence of the purchase of other goods from other persons was held competent on the question of criminal intent. Reg. v. Rosebuck, Dears. & B. C. C. 24, was another case of false pretenses. The false pretense was that a chain, pledged by the defendant to a pawnbroker, was silver. Evidence that the defendant a few days afterwards offered a similar chain to another pawnbroker was held admissible. Reg. v. Francis, 12 Cox, C. C. 612; Hitchcock's Case, 6 City Hall Rec. 43; Rex v. Parsons, 1 W. Bl. 392; Rex v. Roberts, 1 Campb. 399. Such evidence can

not fail to mislead a jury, and it will be assumed that it did so. Coleman v. People, 55 N. Y. 81.

Where upon the trial of an indictment for obtaining goods on credit, by means of false representations on the part of the prisoner as to his responsibility, the representations charging their falsity, and the knowledge of the accused that they were false is established, the allegation that they were made with intent to defraud may be supported by proof of dealings of the prisoner with parties other than the complainant, such as purchases made upon the faith of similar representations, which tend to show a fraudulent scheme to obtain property by devices similar to those practiced upon him, provided the dealings are sufficiently connected in point of time and character, to authorize an inference that the purchase from the complainant was made in pursuance of the same general purpose. So, also, similar representations made by the prisoner to creditors, from whom goods had been previously purchased by him, although no goods were obtained by means of the representations, may be proved when evidence has been given tending to show that he was at the time making fraudulent disposition of the goods purchased. Such evidence is relevant, not as bearing upon the question whether the prisoner made the representations charged, but as tending to show a motive in pursuance of the general fraudulent scheme, to quiet the creditors and retain control of the goods, so as to continue the fraudulent disposition of them. Mayer v. People, 80 N. Y. 364. There are cases holding that it is only as part of the res gesta, that evidence of other acts can be received in a criminal case to show the intent. 2 Best, Ev. (Wood's ed. 1876), 876, 888, note; Reg. v. Oddy, 5 Cox, C. C. 210, 215; Copperman v. People, 56 N. Y. 594; People v. Corbin, 56 N. Y. 363. In such cases only prior acts, never subsequent acts, can be inquired into.

The principle upon which such evidence is admitted is, that, "though the prisoner is not to be prejudiced in the eyes of the jury by the needless admission of testimony tending to prove another crime, yet, whenever the evidence which tends to prove the other crime tends also to prove this one, not merely by showing the prisoner to be a bad man but by showing the particular bad intent to have existed in his mind at the time when he did the act complained of, it is admissible." State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69.

In the case of Mayer v. People, 80 N. Y. 376, which was the case of an indictment for obtaining goods by false pretenses, Rapallo, J., in speaking of the admissibility of testimony of this nature upon the question of intent, said: "that when the representations, their falsity and the knowledge of the accused that they were false is established by competent testimony, the allegation that they were made with intent to defraud may be supported by proof of dealings by the accused with parties other than the complainant, which tends to show a fraudulent scheme to obtain property by devices similar to those practiced upon him, provided the dealings are sufficiently connected in point of time and character to authorize an inference that the purchase from the complainant was made in pursuance of the same general purpose."

The objections to the admissions of evidence as to other transactions, in which the prisoner has been guilty of false pretense are very apparent. Such evidence compels the defendant to meet charges of which the indictment gives him no information, confuses him in his defense, raises a variety of issues, and thus diverts the attention of the jury from the one immediately before it; and, by showing the defendant to have been a knave on other occasions, creates a prejudice which may cause injustice to be done him. It is a well settled rule of the criminal law, that the general character of a defendant cannot be shown to be bad, unless he shall first himself attempt to prove it otherwise. It ought not to be assailed indirectly by proof of misconduct in other transactions, even of a similar description. State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69.

It may well be doubted whether the exceptions to the general rule of law ought to be further extended. In Reg. v. Oddy, 5 Cox, C. C. 210, Lord Campbell remarks, as to the reception of evidence where base coin or counterfeit bills are charged to have been knowingly uttered, "I have always thought that those decisions go a great way, and I am by no means inclined to apply them to the criminal law generally." See Reg. v. Holt, 8 Cox, C. C. 411.

Generally speaking, on a trial for a criminal offense, evidence showing the commission of other offenses of a similar character is competent, provided these other offenses tend to show the quo animo of the specific offense for which the accused is being tried. State v. Williams, 2 Rich. L. 418; Weyman v. People, 4 Hun,

511; Rex v. Roberts, 1 Campb. 399; Bielschofsky v. People, 3 Hun, 40; Rex v. Ellis, 6 Barn. & C. 145; Copperman v. People, 56 N. Y. 591; Com. v. Tuckerman, 10 Gray, 179; Rex v. Davis, 6 Car. & P. 177; Hitchcock's Case, 6 City Hall Rec. 43; Rex v. Wylie, 1 Bos. & P. 94; Com. v. Eastman, 1 Cush. 189, 48 Am. Dec. 596; Rex v. Dossett, 2 Car. & K. 306; Com. v. Coe, 115 Mass. 481; Com. v. Choate, 105 Mass. 459; Com. v. Stone, 4 Met. 43; Rex v. Dunn, 1 Mood. C. C. 146; Com. v. Price, 10 Gray, 472, 71 Am. Dec. 668; Rex v. Oddy, 2 Den. C. C. 264; Com. v. Ferrigan, 44 Pa. 386; Reg. v. Forster, Dears. C. C. 456; People v. Wood, 3 Park. Crim. Rep. 681; Bottomley v. United States, 1 Story, 135; Stout v. People, 4 Park. Crim. Rep. 71; Wood v. United States, 41 U. S. 16 Pet. 360, 10 L. ed. 994; Reg. v. Richardson, 8 Cox, C. C. 448; Reg. v. Francis, 12 Cox, C. C. 612; Reg. v. Cooper, L. R. 1 Q. B. 19.

§ 440. Evidence of Ability to Repay the Amount Obtained Immaterial. It is no defense to an indictment alleging the obtaining of money by false pretenses, that the person so obtaining the money intended to repay it, and evidence of ability to make the repayment is immaterial. Where the property obtained by false pretenses is a check for $7000, evidence that the check, which was given as for a loan of money, was drawn on a bank, that the drawer at the time made deposits in two banks and was in the habit of drawing on one of them, is sufficient to warrant the jury in finding that the check was of value. Com. v. Coe, 115 Mass. 481.

S441. Pretense must be such as to Mislead Men of Ordinary Prudence-Contradiction in the Decisions.-A criminal prosecution cannot be based upon false representations which are not of such a character that a man of common understanding is justified in relying upon them. State v. Burnett, 119 Ind. 392.

This ruling of the Indiana court is utterly repudiated in other jurisdictions and must be regarded as a startling digression from the entire current of recent authority. Mr. Wharton says (2 Am. Crim. L. § 1188): "The prosecutor's capacities and opportunities must be considered in determining his culpability. The question of carelessness is to be determined from the prosecutor's standpoint. To obtain from a jeweler money by exhibiting a spurious jewel might not be within the statute for the jeweler to offer the same spurious stone to an ignorant customer. Gross

carelessness is to be determined by the capacity of the prosecutor. The weaker the mind, the less stringent the rule."

Mr. Bishop says (2 Crim. L. §§ 433, 436): "But must the pretense be such as it is calculated to mislead men of ordinary prudence? Some of the other cases lay down the doctrine that it must. But in reason, and it is believed, according to the better modern authorities, a pretense calculated to mislead a weak mind, if practiced on such a mind, is just as obnoxious to the law as one calculated to overcome a strong mind, if practiced on the latter. Practically, it is impossible to estimate a false pretense otherwise than by its effect. It is not an absolute thing, to be handled and weighed as so much material substance, it is a breath issuing from the mouth of a man, and no one can know what it will accomplish except as he sees what in fact it does. Of the millions of men on our earth, there is not one who would not be pronounced to hold some opinion, or to be influenced in some affair, in consequence of considerations not adapted to affect any mind of ordinary judgment and discretion. And no man of business is so wary as never to commit, in a single instance, a mistake such as any jury would say on their oath could not be done by a man of ordinary judgment and discretion. These facts being so, plainly a court cannot, with due regard to the facts of human life, direct a jury to weigh a pretense, an argument, an inducement to action, in any other scale than that of its effect."

There has been a conflict of opinion as to whether the false pretenses, to be indictable, should be such as would necessarily impose upon a man of ordinary prudence. In New York, Pennsylvania, Arkansas, and some of the other states, it has been held that a representation, though false, is not within the statute making it an offense to obtain money or other property under false pretenses, unless calculated to deceive persons of ordinary prudence. In Pennsylvania and New York such is no longer the law, it being now held that it is not less a false pretense that the party imposed upon might by common prudence have avoided the imposition. We think that it is generally received both in England and the United States as the law, that the pretense need not be such an artificial device as will impose upon a man of ordinary prudence or caution, that the pretense need not be such as cannot be guarded against by ordinary caution or common prudence. Colbert v. State, 1 Tex. App. 314.